High court: Jury won’t hear engineer’s lawsuit over failed construction project

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The Wisconsin Supreme Court has found that a structural engineer from Milwaukee should not be able to have a jury hear his and his wife’s lawsuit against a bank because he signed that right away.

The court’s 4-2 majority decision Thursday was written by Justice Annette Ziegler. Justice Dan Kelly did not participate, and Justice Ann Walsh Bradley dissented, joined by Justice Shirley Abrahamson.

The case stemmed from a lawsuit that Carol and Taft Parsons filed in 2011 against Green Bay-based Associated Bank. The couple alleged that the bank should be held liable for the actions of a loan officer who had helped them borrow money to build 12 townhouses in their neighborhood, near Milwaukee’s Hampton Avenue and 46th Street.

The work on the townhouses never started even though the Parsons had paid out $30,000 from a $40,000 home-equity loan and $121,000 from a $774,000 construction loan.

The case largely concerned a jury-trial waiver provision that was in the loan agreement the Parsons had signed. The question before the state’s high court was whether Associated Bank had waited too long to invoke that waiver in court proceedings.

Associated Bank contended that no matter whether the right to a jury trial arises in Wisconsin from statute or the state constitution, it can be waived. The bank also argued that Taft Parson’s experience and work as a structural engineer in effect made him a commercial party who can be expected to know more than most people about development contracts.

The Parsons, in defending a favorable decision by the state Court of Appeals, contended that state law already explicitly lists how Taft Parsons might have waived his right to a jury trial, had he chosen to do so. Not among his options, the Parsons contended, was signing a contract with a waiver provision.

The court’s majority disagreed with the Parsons in Thursday’s decision, finding that the choices specifically listed in state law are not the only ways to waive a jury trial. The court concluded that the provision found in the contract the Parsons had signed was enforceable and clear about what right was being waived.

The high court, disagreeing with the Court of Appeals, also found that Associated Bank did not have to offer additional proof that Parsons knowingly and voluntarily agreed to the waiver.

As for whether Associated Bank waited too long to bring up the waiver, the justices essentially found that the point was moot. They found that the Parsons, after signing the enforceable waiver, were being unreasonable in demanding a jury trial.

The high court’s decision sends the case back to Milwaukee County Circuit Court, where the Parsons’ lawsuit will be heard by a judge, rather than a jury. Follow @erikastrebel